CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE ISSUE OF COMPARISON OF STATELESS PERSON WITH STATELESS SHIP … the interest of the states in the safety of navigation and the fulfilment of the obligations of the ship’s operator in relation to the ship’s crew. In the author’s opinion, the position of a person and a ship is incomparable in the matter of registration, which is associated with the issuance of a birth certificate, which is a prerequisite for granting citizenship to the child after birth, in relation to the ship the registration is a requirement for granting the right to fly the flag. In regard to the right of the state to intervene against a stateless ship, respectively a stateless person, the following remarks might be noted. The state, which detained the stateless ship, is in principle entitled to register this ship, so on its next voyage this ship would already sail under the flag of the state, which it earlier seized. The state should first investigate whether the ship had an owner, and if not, the ship would be forfeited to the state that previously seized it. If the ship had an owner, then the state should resolve the further issues with the ship’s owner. Acquiring ownership rights towards the ship by the state, which previously detained it, and to which the ship forfeited, may also be a matter of interest due the economic reasons. The value of a ship, unlike a person, is financially quantifiable. Therefore, states might have a greater interest in granting the registration to the ship, rather than in relation to granting citizenship to a person. Hence the position of a stateless ship can be hardly comparable also in this matter to a stateless person. A stateless person is often treated by the states as if they do not exist. International law does not stipulate the rules for movement of stateless persons, their domestic laws are applied in relation to entry the foreigners into the territory of the states, rules and restrictions of states in regard to treatment of persons who do not hold any documents. A stateless person has no or very limited access to the main rights and freedom. Another major difference in this matter is, that a ship is also completely passive. The ship is a thing and therefore does not have the will to obtain state registration. On the contrary, persons, if they are informed about their rights, are very often interested in changing their status by obtaining citizenship by naturalisation. In the author’s opinion, partial similarity between a stateless person and stateless ship could be found in regard to the necessity to undergo the inspection and control. However, this might technically apply to any ship (according to the conditions defined in UNCLOS) and to any person crossing the borders of the state, due to the security reasons. The reason for using the word partially also stems from the fact that according to the UNHCR report, most stateless persons have never crossed any borders and find themselves without a nationality in the country in which they have been long term residents or in the country of their birth. 69 That is why the comparison of a stateless person with a stateless ship might currently be considered only in very limited way. In conclusion the author notes that it might be understandable, that L. Oppenheim in his time used this comparison. There can be noted the ruling of the Permanent Court of Arbitration from 1905, which was from the same year as the Oppenheim’s textbook. Based on the ruling in the case of Muscat Dhows arbitration ‘ generally speaking it belongs to every Sovereign to decide to whom he will accord the right to fly his flag and to prescribe the rules

69 UNHCR. Faces of Statelessness in the Czech Republic. [online] [accessed on 19 May 2024] Available at: https:// tinyurl.com/bdd9hszx.

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